EFF to Court: Don't Let Government Hide Illegal Surveillance

Lawyers Fight for the Future of Lawsuits Challenging Massive Spying Program

Seattle - The Electronic Frontier Foundation (EFF) urged the 9th U.S. Circuit Court of Appeals today to preserve lawsuits challenging the government's illegal mass surveillance of millions of ordinary Americans. In oral arguments today, EFF asked the court to block the government's attempt to bury the suits with claims of state secrecy and an unconstitutional "immunity" law for telecoms that participated in the spying.

Appearing before the court in Seattle, EFF Legal Director Cindy Cohn and Senior Staff Attorney Kevin Bankston argued against the dismissal of EFF's two lawsuits, Hepting v. AT&T and Jewel v. NSA, along with the 32 other cases against various telecommunications carriers. At stake is whether the courts can judge the legality and constitutionality of the National Security Agency's (NSA's) bulk interception of Americans' phone calls and emails, accomplished through back-door access to AT&T's domestic telecom network and its databases of communications records.

"The scope and legality of the NSA program has been the subject of widespread reporting and debate for half a decade -- it is hardly a secret. And Congress long ago crafted balanced and comprehensive security procedures to govern courts' handling of secret evidence about electronic surveillance to ensure that the Judicial Branch is always able to watch over Executive Branch spying while preserving national security," said Bankston. "Yet the government still claims that any judicial scrutiny of the NSA program would disclose 'state secrets' and harm national security. It's time for these lawsuits to proceed and for the courts to be allowed to do their job and determine the legality of the NSA program."

EFF also argued that the FISA Amendments Act (FAA) -- the 2008 legislation aimed at getting telecoms participating in the NSA program off the hook for breaking the law -- violates the Constitutional separation of powers.

"The FAA effectively allows the President to grant favored companies a 'get out of jail free' card even though the law prohibits telecoms from violating their customers' privacy," said Cohn. "We can't allow the government to stack the deck against ordinary Americans. We need to protect against officials who overstep limits on their power."

More than five years ago, EFF filed Hepting v AT&T, the first lawsuit against a telecom aimed at stopping the government's dragnet domestic wiretapping. In 2008, when Congress passed legislation that threatened to end the Hepting case, EFF filed Jewel v. NSA -- a case directly against the government and government officials.